National Advertising Co. v. Town of Babylon

Decision Date03 April 1990
Docket Number433 and 246-248,D,Nos. 432,s. 432
Citation900 F.2d 551
PartiesNATIONAL ADVERTISING COMPANY, Plaintiff-Appellee-Cross-Appellant, v. TOWN OF BABYLON, Incorporated Village of Lindenhurst, Town of Brookhaven, Incorporated Village of Freeport, Town of Oyster Bay, Town of Islip and Town of Hempstead, Defendants, Town of Oyster Bay, Town of Babylon, Town of Hempstead, Town of Islip, Defendants-Appellants-Cross-Appellees, and Incorporated Village of Freeport, Defendant-Cross-Appellee. ockets 89-7144, 89-7192, 89-7248, 89-7480 and 89-7506.
CourtU.S. Court of Appeals — Second Circuit

Robert W. Schmidt, Oyster Bay Town Atty. (Kenneth A. Davis, Oyster Bay, N.Y., of counsel), for defendant-appellant-cross-appellee, Town of Oyster Bay.

Thomas F. Whalen, Babylon Town Atty. (Neil Tiger, Lindenhurst, N.Y., of counsel), for defendant-appellant-cross-appellee Town of Babylon.

Lawrence L. Friedman, Hempstead, N.Y. (Ronald J. Levinson, Hempstead Town Atty., of counsel), for defendant-appellant-cross-appellee, Town of Hempstead.

Lawrence Donohue, Islip, N.Y. (Robert J. Cimino, Islip Town Atty., of counsel), for defendant-appellant-cross-appellee, Town of Islip.

William F. Glacken, Freeport, N.Y., for defendant-cross-appellee, Inc. Village of Freeport.

Myron D. Cohen, New York City (Christopher M. Mason, Michael R. Shebelskie, Hunton & Williams, of counsel), for plaintiff-appellee-cross-appellant.

Before OAKES, Chief Judge, and KEARSE and ALTIMARI, Circuit Judges.

OAKES, Chief Judge:

These appeals and cross-appeal, involving five municipal billboard ordinances, are from a judgment of the United States District Court for the Eastern District of New York, Leonard D. Wexler, Judge, reported at 703 F.Supp. 228 (E.D.N.Y.1989). The Towns of Babylon, Hempstead and Oyster Bay appeal from Judge Wexler's decision insofar as it struck down their ordinances in their entirety as unconstitutional restrictions on commercial speech. The Town of Islip appeals from the decision insofar as it struck down part of its ordinance as an unconstitutional restriction on noncommercial speech. The National Advertising Company ("National") cross-appeals from the decision insofar as it severed unconstitutional provisions of the ordinances of Islip and the Incorporated Village of Freeport and saved the remainder. We affirm the judgment to the extent that it struck down the ordinances of Babylon and Hempstead; we reverse the judgment to the extent that it upheld portions of the ordinances of Freeport and Islip; and we dismiss the appeal of Oyster Bay.

BACKGROUND

National, a subsidiary of Minnesota Mining and Manufacturing Company, is engaged in the business of outdoor advertising and commands a market share of approximately twenty percent of the billion-dollar billboard industry in the United States. It leases real estate upon which it erects and maintains billboards and in turn leases space on the billboards to persons or entities wishing to communicate messages to the viewing public. Ninety-eight percent of the billboards National leases are commercial in nature, while the remaining two percent convey noncommercial messages.

National has obtained leasehold interests on sites on which it intends to erect billboards in each of the Long Island municipalities that are parties to this action. Each of those sites is in an area zoned for commercial or industrial use. The proposed billboards would carry both commercial and noncommercial messages that would be unrelated to the products sold or activities conducted at the locations; in other words, the signs would contain off-premises, as opposed to on-premises, advertising.

In analyzing the constitutionality of the ordinances, the district court first applied the four-part test for determining the validity of governmental regulations on commercial speech that was set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563-66, 100 S.Ct. 2343, 2350-51, 65 L.Ed.2d 341 (1980), and later summarized in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507, 101 S.Ct. 2882, 2892, 69 L.Ed.2d 800 (1981) (plurality opinion):

(1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it (2) seeks to implement a substantial governmental interest, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective.

703 F.Supp. at 233 (quoting Metromedia ). After finding that there is no suggestion that the advertising for which National seeks constitutional protection involves unlawful activity or is misleading, see id. at 234, the district court found that the Babylon, Hempstead and Oyster Bay sign ordinances fail to satisfy the second element of the test in that there is "a complete absence of any stated purpose to support their respective bans on offsite commercial advertising." Id. at 235. In addition, those towns "failed to offer any evidence as to the objectives that might underlie the ordinances." Id. Accordingly, the court struck down their sign ordinances. By contrast, the court noted that the Freeport and Islip ordinances properly cite as their goals the enhancement of aesthetics and the improvement of traffic safety, cf. Metromedia, 453 U.S. at 507-08, 101 S.Ct. at 2892-93 ("traffic safety and the appearance of the city ... are substantial governmental goals"), and found that those ordinances satisfy all the elements of the Central Hudson test. See 703 F.Supp. at 236.

Turning to the ordinances' impact on noncommercial speech, the court noted that the Metromedia plurality had held that an ordinance cannot pass constitutional muster if it favors any type of commercial speech over noncommercial speech. See id. at 236-37 (citing Metromedia, 453 U.S. at 513, 101 S.Ct. at 2895). The district court found that, contrary to that requirement, the Freeport and Islip ordinances effectively limit the content of a sign to a business's name and basic information concerning the nature of its business. 1 For instance, as Islip has conceded in its reply brief to this court, under its ordinance " 'Joe's Famous Pizza' ... could not install a sign say[ing] 'Abortion is Murder.' " The district court concluded that the Freeport and Islip ordinances unconstitutionally prohibit noncommercial speech. See 703 F.Supp. at 238.

The district court also found that certain exceptions to Islip's general ban on signs impermissibly prefer commercial over noncommercial speech, such as a provision permitting signs indicating that real property is for sale or lease, and that other exceptions impermissibly favor certain forms of noncommercial speech, such as temporary political signs and signs "identifying a grand opening, parade, festival, fund drive or similar occasion," over other forms of noncommercial speech based on their content. See id. at 238-39 (citing Islip, N.Y., Code art. XXIX Sec. 68-395(B)(6), (13) & (16)). The court found that the Freeport ordinance contains a similar impermissible exception for "for sale" signs. See id. at 238 (citing Freeport, N.Y., Code art. XXI Sec. 210-208(J)).

Although the court found that aspects of the Freeport and Islip ordinances violate First Amendment guarantees, it stopped short of striking down the ordinances in their entirety. Instead, the district court enjoined Freeport and Islip from enforcing their ordinances so as to disadvantage noncommercial speech as against commercial speech, or to disadvantage certain forms of noncommercial speech as against other forms of noncommercial speech. See id. at 240. The effect of the district court's remedy was to sever the unconstitutional portions of the ordinances and to leave the remainder of the ordinances intact. In so doing, the district court restructured the Freeport and Islip ordinances along the lines of ordinances found constitutional by the Fourth Circuit in Major Media of the Southeast v. City of Raleigh, 792 F.2d 1269, 1271-72 (4th Cir.1986), cert. denied, 479 U.S. 1102, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987), and Georgia Outdoor Advertising v. City of Waynesville, 833 F.2d 43 (4th Cir.1987), both of which upheld under Metromedia municipal ordinances that allowed any authorized sign "to contain non-commercial copy in lieu of any other copy." 2

DISCUSSION

In the first place, we dismiss Oyster Bay's appeal because its notice of appeal was filed while Hempstead's motion to vacate the district court's judgment pursuant to Federal Rule of Civil Procedure 59 was pending in the district court. Under Federal Rule of Appellate Procedure 4(a)(4), a notice of appeal filed during the pendency of a Rule 59 motion is ineffective. See Acosta v. Louisiana Dep't of Health and Human Resources, 478 U.S. 251, 106 S.Ct. 2876, 92 L.Ed.2d 192 (1986) (per curiam). Because Oyster Bay did not file a proper notice of appeal after the district court denied the Rule 59 motion, it did not submit effective notice of appeal under Federal Rule of Appellate Procedure 4(a)(1).

As to a preliminary issue raised by the remaining appellants, we have no doubt that the district court was correct in holding that, because of its commercial interest in the speech appellants seek to restrict, National has standing to challenge the ordinances, just as Metromedia had standing in its lawsuit against San Diego. See Metromedia, 453 U.S. at 504 & n. 11, 101 S.Ct. at 2890 & n. 11. Similarly, National was not required to exhaust administrative remedies since it challenged the ordinances as facially invalid. See Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 939, 22 L.Ed.2d 162 (1969) (" 'The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands.' ") (citation omitted).

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